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A trade mark is a mark that has been registered with the aim of distinguishing, in the course of trade, the services or products of a person from the services or products of his/her competitors. A trade mark gives its owner the exclusive right to exclude competitors’ use of the mark with reference to identical or even similar products or services.  In addition to ordinary trademarks, collective trademarks and certification trademarks also exist.  If a mark has not been registered, an action for unlawful competition may still be useful regarding unauthorized competitive use of the mark, provided that the mark has a reputation.

A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company.  Its origin dates back to ancient times when craftsmen reproduced their signatures, or “marks”, on their artistic works or products of a functional or practical nature. Over the years, these marks have evolved into today’s system of trademark registration and protection. The system helps consumers to identify and purchase a product or service based on whether it’s specific characteristics and quality – as indicated by its unique trademark

Collective trade marks

A collective trade mark is also a trade mark, but with the difference that it distinguishes the services or products of persons who are members of an association from the services or products of other groups.  A good example is that of the wine farmers of the Stellenbosch district, who have obtained the exclusive collective trade mark to use the words “produced in the Stellenbosch district”.  Collective trademarks may not be registered by individuals. Place names and geographical names are very popular in the case of this type of trade mark registration.

Certification trade marks

A certification trade mark is also a trade mark, but with the difference that it certifies the services or products of a person in respect of origin, quality, materials or any other characteristics of the products or services that distinguish them from products or services that have not been certified in this way. A good example is the South African Bureau of Standards (SABS), which can grant an SABS mark to such products or services. In this case, the SABS applies to the Registrar of Trade Marks to have the certification trade mark registered as such. The SABS then acquires the right to grant the certification trade mark to its clients, provided that the clients meet the requirements of the SABS.

What do trademarks do?

Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services, or to authorize others to use them in return for payment. The period of protection varies, but a trademark can be renewed indefinitely upon payment of the corresponding fees. Trademark protection illegally enforced by courts that, in most systems, have the authority to stop trademark infringement. In a larger sense, trademarks promote initiative and enterprise worldwide by rewarding their owners with recognition and financial profit. Trademark protection also hinders the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services. The system enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions, thereby facilitating international trade.

What kinds of trademarks can be registered?

Trademarks may be one or a combination of words, letters and numerals. They may consist of drawings, symbols or three-dimensional signs, such as the shape and packaging of goods. In some countries, non-traditional marks may be registered for distinguishing features such as holograms, motion, color and non-visible signs (sound, smell or taste).

In addition to identifying the commercial source of goods or services, several other trademark categories also exist. Collective marks are owned by an association whose members use them to indicate products with a certain level of quality and who agree to adhere to specific requirements set by the association. Such associations might represent, for example, accountants, engineers or architects. Certification marks are given for compliance with defined standards but are not confined to any membership.

They may be granted to anyone who can certify that their products meet certain established standards. Some examples of recognized certification are the internationally accepted “ISO 9000” quality standards and Ecolabels for products with reduced environmental impact.

How is a trademark registered?

First, an application for registration of a trademark must be filed with the appropriate national or regional trademark office. The application must contain a clear reproduction of the sign filed for registration, including any colors, forms or three-dimensional features. It must also contain a list of the goods or services to which the sign would apply. The sign must fulfill certain conditions in order to be protected as a trademark or other type of mark.

It must be distinctive, so that consumers can distinguish it from trademarks identifying other products, as well as identify a particular product with it. It must neither mislead nor deceive customers nor violate public order or morality.

Finally, the rights applied for cannot be the same as, or similar to, rights already granted to another trademark owner. This may be determined through search and examination by national offices, or by the opposition of third parties who claim to have similar or identical rights.

How extensive is trademark protection?

Almost all countries in the world register and protect trademarks. Each national or regional office maintains a Register of Trademarks containing full application information on all registrations and renewals, which facilitates examination, search and potential opposition by third parties. The effects of the registration are, however, limited to the country (or, in the case of regional registration, countries) concerned.

To avoid the need to register separate applications with each national or regional office, WIPO administers an international registration system for trademarks. The system is governed by two treaties: the Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol. Persons with a link (be it through nationality, domicile or establishment) to a country party to one or both of these treaties may, on the basis of a registration or application with the trademark office of that country (or related region), obtain an international registration having effect in some or all of the other countries of the Madrid Union.


Trade Dress

Trade dress refers to the overall appearance and image of a product. Trade dress must be inherently distinctive or develop secondary meaning as a source-identifier in order to be protected.

In the United States, trade dress protection applies to the “total visual image” where services are concerned. For example, a U.S. federal appellate court found that a restaurant’s décor, menu, layout and style of service were protectable.

In the United States, trade dress may be protected via common-law rights (acquired through use in commerce) and/or by registration.

Trade Secrets

Trade Secrets or Know-how is commercially valuable information such as production methods, business plans or clientele that may give a person or company a competitive advantage. As long as it is known only to a few people, such information can be legally recognized and protected as a trade secret but, once they are learnt through legitimate means they enter the public domain.   A  claim  for  protection  of  know-how  as  a  trade  secret  requires that efforts be made to prevent disclosure. Law makes the taking without permission of a trade secret an illegal act, but not the discovery by proper means i.e. by independent discovery, accidental or actual disclosure or by reverse engineering.

Trade  secrets  are  a  form  of  Intellectual  Property  Rights  which  prevent misappropriation  of  information. They are usually used in combination with contract law, patents and plant varieties protection (PVP). They have no fixed term of protection and are used to prevent “reverse engineering.”

The Kenya IP Act 2001 contains no provisions on data protection. Kenya’s position is that, as in the United Kingdom, trade secrets are protected by the common law.

Unlike many of the other forms of intellectual property protection previously mentioned, trade secrets are generally protected by state law, not Federal law. Trade secret protection is very limited. A trade secret holder is only protected from unauthorized disclosure and use of the trade secret by others and from another person obtaining the trade secret by some improper means.

Industrial Design

  • An industrial design is an intellectual property right that protects the visual design of objects that are not purely utilitarian (designed for use rather than beauty).
  •  An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

What kind of products can be protected as industrial design?

  • Industrial designs are applied to a wide variety of products of industry and handicraft: from technical and medical instruments to watches, jewelry, and other luxury items; from housewares and electrical appliances to vehicles and architectural structures; and from textile to leisure goods.

Why protect industrial designs?

  • Industrial designs are what make a product attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.
  • When an industrial design is protected, this helps to ensure a fair return on investment. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices.
  • Protecting industrial designs also helps economic development, by encouraging creativity in the industrial and manufacturing sectors and contributes to the expansion of commercial activities and the export of national products.

How can industrial designs be protected?

  • In most countries, an industrial design must be registered in order to be protected under industrial design law. Depending on the particular national law and the kind of design, an industrial design may also be protected as an unregistered design or as a work of art under copyright law. In some countries, industrial design and copyright protection can exist concurrently. In other countries, they are mutually exclusive: meaning that once the owner chooses one kind of protection, he can no longer invoke the other.
  • Under certain circumstances an industrial design may also be eligible for protection under unfair competition law, although the conditions of protection and the rights and remedies ensured can be significantly different.

Industrial design-related treaties

  • Hague Agreement

Subject matter: Industrial design

  • Locarno Agreement

Subject matter: Industrial design

  • Paris Convention

Subject matter: Domain Names, Enforcement of IP and Related Laws, Geographical Indications, Industrial Designs, Patents (Inventions), Trade Names, Trademarks, Undisclosed Information (Trade Secrets)

  • WIPO Convention

Subject matter: Copyright and Related Rights (Neighboring Rights), Domain Names, Enforcement of IP and Related Laws, Genetic Resources,

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